Wet foot follies

March 15, 2006

For five days in January, 15 Cubans who fled to Florida by boat were held on a Coast Guard vessel offshore while legal experts debated whether they should be allowed to apply for U.S. residency or escorted back to Cuba.

The question wasn't whether the refugees had a well-founded fear that they would be persecuted if forced to return to the hemisphere's only communist nation. The question was, does a section of abandoned bridge, no longer connected to land, count as U.S. soil? The Coast Guard decided it did not, and sent the Cubans back. A federal judge in Miami later ruled that, yes, it did. Oops.

The whole episode provides a shining example of the utter senselessness of U.S. immigration policy toward Cuba: Based on the judge's ruling, the Cubans were entitled to stay in the U.S. not because Fidel Castro is a ruthless dictator, but because they tagged the bridge.

Under the 10-year-old policy known as "wet foot/dry foot," Cubans who reach U.S. soil are almost always allowed to stay; those who are intercepted at sea are almost always sent back.

When the 15 Cubans abandoned their sinking boat just off the Florida Keys and climbed aboard the pilings of the old Seven Mile Bridge, they believed they had successfully touched American soil. Their feet, in other words, were dry. But Coast Guard officials reasoned that the refugees could not walk ashore because the old bridge had been severed from land. That meant their feet were wet.

By the time District Judge Federico Moreno reversed that, it was too late. The group had been returned to Cuba. The judge ordered the government to do everything in its power, whatever that means, to bring them back. At this point it's up to Fidel Castro, so don't hold your breath.

Cuban exiles in Miami were outraged over the legal hairsplitting. Three Cuban-American lawmakers have demanded a meeting with the State Department to discuss reforms in U.S.-Cuba immigration policy. Some changes are definitely in order, but the answer isn't to ease up on those who are stopped at sea, which is what the exile community has in mind. The journey across the Florida Straits is treacherous and illegal, but thousands of Cubans have been willing to risk it because their legal problems vanish if they can get a toe on dry land. It's unconscionable for the U.S. government to encourage this.

Wet foot/dry foot may be a tortured and ambiguous policy, but it's much more generous than the policy that applies to everyone else. Boatloads of Haitian refugees turn up with some frequency in South Florida, and the U.S. policy toward them is almost invariably to turn them away, whether they make it ashore or not. The same rule applies at the Mexican border.

Cubans have long been a special case. The 1966 Cuban Adjustment Act virtually guaranteed legal residency to the hundreds of thousands of Cubans who fled after Castro seized power. Wet foot/dry foot came along after the Cuban rafter crisis of 1994, in which tens of thousands of Cubans set out for Florida on crude rafts, boats and inner tubes. That year, the Coast Guard plucked more than 37,000 refugees from the Atlantic and brought them ashore. Under the new policy, the Clinton administration agreed that those stopped at sea would be sent back instead.

That policy, zealously enforced by the Coast Guard ever since, cut the number of attempted crossings dramatically. In 2004, the Coast Guard intercepted fewer than 1,500. But last year, the number nearly doubled.

Like the 15 Cubans who were sent back in January, many of those who are stopped vow to try again and again, until they reach dry land or drown trying. That's not going to change unless the U.S. stops rewarding those who manage to dodge the Coast Guard cutters all the way to the beach. The U.S. can't open its borders to everyone. But we can try to be fair about deciding who gets in and who doesn't. Those decisions should be based on sound policy and due process and not on silly questions about wet feet, dry feet, or a bridge to nowhere.